Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale

• Citation: 901 F.3d 1235
• Decision Date: 22 August 2018
• Docket Number: No. 16-16808,16-16808
• Parties: FORT LAUDERDALE FOOD NOT BOMBS, Nathan Pim, Jillian Pim, Haylee Becker, William Toole, Plaintiffs-Appellants, v. CITY OF FORT LAUDERDALE, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

901 F.3d 1235

FORT LAUDERDALE FOOD NOT BOMBS, Nathan Pim, Jillian Pim, Haylee Becker, William Toole, Plaintiffs-Appellants,

v.CITY OF FORT LAUDERDALE, Defendant-Appellee.

No. 16-16808

United States Court of Appeals, Eleventh Circuit.

August 22, 2018

Kirsten Noelle Anderson, Jodi Siegel, Southern Legal Counsel, Inc., 1229 NW 12th Ave., Gainesville, FL 32601-4113, Andrea Hope Costello, Florida Legal Services, 14260 W Newberry Rd. #412, Newberry, FL 32669, Mara Shlackman, Law Offices of Mara Shlackman, PL, 757 SE 17th St. PMB 309, Ft. Lauderdale, FL 33316-2960 for Plaintiffs-Appellants.

Alain E. Boileau, Alain E. Boileau, PA 100 N Andrews Ave., Fort Lauderdale, FL 33301, for Defendant-Appellee.

Tracy Tatnall Segal, Akerman, LLP, 777 S Flagler Dr. Ste. 1100W, West Palm Beach, FL 33401-6147, for Amicus Curiae West Palm Beach Food Not Bombs.

Victoria Mesa-Estrada, Florida Legal Services, 14260 W Newberry Rd. #412, Newberry, FL 32669, for Amicus Curiae Marc-Tizoc Gonzalea, Florida Legal Services, Inc., Latina and Latino Critical Legal Theory, Inc., Society Of American Law Teachers, Inc.

Before TJOFLAT and JORDAN, Circuit Judges, and STEELE,^* District Judge.

JORDAN, Circuit Judge:

In understanding what is going on around us, context matters. Food shared with company differs greatly from a meal eaten alone. Unlike a solitary supper, a feast requires the host to entertain and the guests to interact. Lady Macbeth knew this, and chided her husband for "not giv[ing] the cheer" at the banquet depicted in Shakespeare’s play. As she explained: "To feed were best at home; From thence, the sauce to meat is ceremony. Meeting bare without it." William Shakespeare, The Tragedy of Macbeth, Act III, scene 4 (1606).

Fort Lauderdale Food Not Bombs, a non-profit organization, hosts weekly events at a public park in Fort Lauderdale, sharing food at no cost with those who gather to join in the meal. FLFNB’s members set up a table and banner with the organization’s name and emblem in the park and invite passersby to join them in sitting down and enjoying vegetarian or vegan food. When the City of Fort Lauderdale enacted an ordinance in 2014 that restricted this food sharing, FLFNB and some of its members (whom we refer to collectively as FLFNB) filed suit under 42 U.S.C. § 1983. They alleged that the ordinance and a related park rule violated their First Amendment rights of free speech and free association and were unconstitutionally vague.

The district court granted summary judgment in favor of the City. It held that FLFNB’s outdoor food sharing was not expressive conduct protected by the First Amendment and that the ordinance and park rule were not vague. See Ft. Lauderdale Food Not Bombs v. City of Ft. Lauderdale , 2016 WL 5942528 (S.D. Fla. Oct. 3, 2016) (final judgment). FLFNB appeals those rulings.

Resolving the issue left undecided in First Vagabonds Church of God v. City of Orlando, Florida , 638 F.3d 756, 760 (11th Cir. 2011) (en banc), we hold that on this record FLFNB’s outdoor food sharing is expressive conduct protected by the First Amendment. We therefore reverse the district court’s grant of summary judgment in favor of the City. On remand, the district court will need to determine whether the ordinance and park rule violate the First Amendment and whether they are unconstitutionally vague.

I

FLFNB, which is affiliated with the international organization Food Not Bombs, engages in peaceful political direct action. It conducts weekly food sharing events at Stranahan Park, located in downtown Fort Lauderdale. Stranahan Park, an undisputed public forum, is known in the community as a location where the homeless tend to congregate and, according to FLFNB, "has traditionally been a battleground over the City’s attempts to reduce the visibility of homelessness." D.E. 41 at 8.

At these events, FLFNB distributes vegetarian or vegan food, free of charge, to anyone who chooses to participate. FLFNB does not serve food as a charity, but rather to communicate its message "that [ ] society can end hunger and poverty if we redirect our collective resources from the military and war and that food is a human right, not a privilege, which society has a responsibility to provide for all." D.E. 39 at 1. Providing food in a visible public space, and partaking in meals that are shared with others, is an act of political solidarity meant to convey the organization’s message.

FLFNB sets up a table underneath a gazebo in the park, distributes food, and its members (or, as the City describes them, volunteers) eat together with all of the participants, many of whom are homeless individuals residing in the downtown Fort Lauderdale area. See D.E. 40-23. FLFNB’s set-up includes a banner with the name "Food Not Bombs" and the organization’s logo—a fist holding a carrot—and individuals associated with the organization pass out literature during the event. See id .

On October 22, 2014, the City enacted Ordinance C-14-42, which amended the City’s existing Uniform Land Development Regulations. Under the Ordinance, "social services" are

[a]ny service[s] provided to the public to address public welfare and health such as, but not limited to, the provision of food; hygiene care; group rehabilitative or recovery assistance, or any combination thereof; rehabilitative or recovery programs utilizing counseling, self-help or other treatment of assistance; and day shelter or any combination of same.

D.E. 38-1, § 1.B.6. The Ordinance regulates "social service facilities," which include an "outdoor food distribution center." D.E. 38-1, § 1.B.8. An "outdoor food distribution center" is defined as

[a]ny location or site temporarily used to furnish meals to members of the public without cost or at a very low cost as a social service as defined herein. A food distribution center shall not be considered a restaurant.

D.E. 38-1, § 1.B.4.

The Ordinance imposes restrictions on hours of operation and contains requirements regarding food handling and safety. Depending on the specific zoning district, a social service facility may be permitted, not permitted, or require a conditional use permit. See D.E. 38-1 at 9. Social service facilities operating in a permitted use zone are still subject to review by the City’s development review committee. See id.

Stranahan Park is zoned as a "Regional Activity Center—City Center," D.E. 38-34, and requires a conditional use permit. See D.E. 38-1 at 9. To receive a conditional use permit, applicants must demonstrate that their social service facilities will meet a list of requirements set out in § 1.E of the Ordinance.

The City’s "Parks and Recreation Rules and Regulations" also regulate social services. Under Park Rule 2.2,

[p]arks shall be used for recreation and relaxation, ornament, light and air for the general public. Parks shall not be used for business or social service purposes unless authorized pursuant to a written agreement with City.

As used herein, social services shall include, but not be limited to, the provision of food, clothing, shelter or medical care to persons in order to meet their physical needs.

D.E. 38-35.

The City has voluntarily not enforced Ordinance C-14-42 and Park Rule 2.2 since February of 2015.

II

FLFNB contends that the Ordinance and Park Rule 2.2 violate its rights to free speech and free association guaranteed by the First Amendment, which is made applicable to state and local governments through the Due Process Clause of the Fourteenth Amendment. See D.E. 1 at 21; Gitlow v. New York , 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138 (1925). It also argues that the ordinance and regulation are unconstitutionally vague, both facially and as applied. See D.E. 1 at 27.

The City defends the district court’s summary judgment ruling. It asserts that the food sharing events at Stranahan Park are not expressive conduct because the act of feeding is not inherently communicative of FLFNB’s "intended, unique, and particularized message." See City’s Br. at 35. Understanding the events, according to the City, depends on explanatory speech, such as the signs and banners, indicating that FLFNB’s conduct is not inherently expressive.

We review the district court’s grant of summary judgment de novo . See Rodriguez v. City of Doral , 863 F.3d 1343, 1349 (11th Cir. 2017). The same plenary standard applies to questions of constitutional law. See Graham v. R.J. Reynolds Tobacco Co. , 857 F.3d 1169, 1181 (11th Cir. 2017) (en banc). In reviewing the parties’ cross-motions for summary judgment, we "draw all inferences and review all evidence in the light most favorable to the non-moving party."

Hamilton v. Southland Christian Sch., Inc. , 680 F.3d 1316, 1318 (11th Cir. 2012) (quotation marks omitted and alteration adopted).

There is an additional twist to these standards of review in the First Amendment context. Because "the reaches of the First Amendment are ultimately defined by the facts it is held to embrace ... we must thus decide for ourselves whether a given course of conduct falls on the near or far side of the line of constitutional protection." Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. , 515 U.S. 557, 567, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995). See also Flanigan’s Enters., Inc. v. Fulton Cnty., Ga. , 596 F.3d 1265, 1276 (11th Cir. 2010) (applying First Amendment independent review standard in a summary judgment posture).

III

Constitutional protection for freedom of speech "does not end at the spoken or written word." Texas v. Johnson , 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). The First Amendment guarantees "all people [ ] the right to engage not only in ‘pure speech,’ but ‘expressive conduct’ as well." Holloman ex rel. Holloman v. Harland , 370 F.3d 1252, 1270 (11th Cir. 2004) (citing United States v. O’Brien , 391 U.S. 367, 376–77, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) ). As one First Amendment scholar has explained, "[a] sharp line between ‘words’ and ‘expressive acts’ cannot ... be justified in Madisonian terms. ...